243 F.3d 876 (5th Cir.

2001)

FEDERAL DEPOSIT INSURANCE CORP., Plaintiff,

v.
RORY S. MCFARLAND, ET AL., Defendants.
TEXACO, INC., Defendant-Third Party Plaintiff,
v.
PREMIER VENTURE CAPITAL CORP.; DAVID L. JUMP,
Third Party Defendants-Appellees,
v.
DENNIS JOSLIN CO., L.L.C., Movant-Appellant.
No. 99-30756

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 28, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted]

[Copyrighted Material Omitted]
Appeal from the United States District Court for the Western District of
Louisiana
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:

This appeal turns in part on whether the Federal Deposit Insurance Corporation
(FDIC) as receiver must abide by Louisiana reinscription rules to preserve its
liens. The district court determined that the mortgage and assignment held by
the assignee of the FDIC, the Dennis Joslin Company ("Joslin"), lost priority
status because of the FDIC's failure to reinscribe the mortgage within the
statutory period. The court found that two creditors, Bank One and David L.
Jump, had valid liens that were senior to the FDIC's interest.

In addition to its assertions based on Louisiana law, Joslin argues that the FDIC
is not bound by reinscription requirements. The argument is that either the

Financial Institutions Reform, Recovery, and Enforcement Act of 1989,

FIRREA, or federal common law insulates the FDIC from state-law
reinscription requirements. We are not persuaded and affirm this holding of the
district court. We also conclude that Jump's lien was based on a judgment that
was not final when registered. We reverse the district court's contrary holding
and remand.
3

* On November 30, 1984, Rory S. McFarland pledged a note in the amount of

$2.5 million to the Bank of Commerce of Shreveport, Louisiana.1 McFarland
secured this note with a mineral lease mortgage and assignment, an "assignment
of runs," of his interest in the oil, gas, and minerals produced from the
mortgaged leasehold and mineral interests.2

A casualty of the misfortunes that befell banking in the 1980s, the Bank of
Commerce failed in 1986. The FDIC was appointed receiver and took over the
bank's assets, including the pledged 1984 note and the assignment.3

In August 1990, Bank One Equity Investment, Inc., formerly Premier Venture
Capital Corporation, obtained judgment, "the Bank One judgment," against
McFarland in Louisiana state court. Bank One recorded this judgment in
various Louisiana parishes between March and August of 1991.

On October 1, 1991, David L. Jump obtained a judgment against McFarland,

"the Jump judgment," in the United States District Court for the Western
District of Colorado. Jump registered the judgment in the Western District of
Louisiana on June 26, 1992. In June and July of 1992, Jump recorded the
judgment in various Louisiana parishes.

On October 31, 1991, the FDIC filed suit to collect the debt owed by
McFarland to the Bank of Commerce, including the 1984 mortgage and
assignment. Bank One and Jump intervened in the case4 seeking the proceeds
from the mineral leases that had been paid into the court registry. 5 They
claimed that the 1984 assignment did not encompass a specific offshore lease,
OCS-310.

In 1993, the district court ordered McFarland to pay the FDIC from the
proceeds in the court registry and recognized the 1984 mortgage as the first
lien. The court also held that the 1984 assignment did not include OCS-310 and
ordered McFarland to pay the proceeds of that lease to Bank One and Jump.6
The FDIC recorded the 1993 judgment of the district court in various Louisiana
parishes between November 2, 1993, and November 8, 1993. This Court

subsequently affirmed the judgment in relevant part.7

9

The FDIC reinscribed the 1984 mortgage and assignment in various Louisiana
parishes in July 1995. In 1997, the FDIC assigned the mortgage and assignment
to the Dennis Joslin Company.

10

In 1998, Joslin filed a motion for issuance of a writ of execution and for
foreclosure of the property subject to the 1984 mortgage and assignment. Joslin
also sought distribution of the funds that had accumulated in the court registry.
The district court issued the requested writ of execution and the United States
Marshal for the Western District of Louisiana seized the property. The marshal
advertised the sale of the property and set October 28, 1998 as the date of sale.

11

Through successive filings on October 23 and 26, 1998, Jump objected to

Joslin's actions. Jump contended that the FDIC's failure to reinscribe the 1984
mortgage and assignment within ten years of its execution resulted in a loss of
ranking. Jump argued that the 1991 Jump judgment consequently had priority
as to both the mineral interests and the proceeds deposited in the court registry.
The court postponed the marshal's sale.

12

In June 1999, the district court entered another judgment holding that Louisiana
law required the FDIC to reinscribe the 1984 mortgage and assignment by
November 30, 1994. 8 The FDIC's reinscription in 1995 was therefore untimely,
depriving its assignee, Joslin, of priority rank. The court consequently ranked
the Bank One judgment first, the Jump judgment second, and the FDIC's 1984
mortgage and assignment third. Joslin appeals this determination.

II
13

Joslin contends, first, that this case is moot. 9 Joslin points to the 1993
judgment, in which the district court declared the FDIC to be "the owner and
entitled to all funds paid into the Registry of this Court." Joslin argues that,
except for the funds derived from the OCS-310 lease, the FDIC was declared
owner of all past and future proceeds from the leases in question. Because the
1993 judgment vested the FDIC with priority lien status, Joslin contends that
the reinscription question was rendered moot.10

14

Joslin's position is meritless. There is a live case or controversy regarding the

meaning of the 1993 judgment--the extent to which it encompasses future, as
well as past, proceeds deposited in the registry. Moreover, we note that
Louisiana law mandates the reinscription of mortgages and assignments within

a ten-year period.11 As the Louisiana Supreme Court has held, "[a] litigation
between the mortgage creditors does not dispense from reinscription. . . . The
inscription must continue until the proceeds of the property mortgaged are
reduced to possession."12 The 1993 judgment did not then implicitly end the
FDIC's continuing obligation to reinscribe the mortgage. Moreover, the FDIC's
failure to reinscribe the mortgage did not occur until 1994, and the issue was
not properly before the district court.13 Even if we were to interpret the 1993
judgment as declaring the FDIC to be owner of all future proceeds deposited in
the court registry, the judgment would still not exclude the possibility that other
circumstances--e.g., failure to reinscribe--might deprive the FDIC of its lien.
The instant appeal therefore presents a live controversy.14
III
15

The larger question posed by this case is whether Louisiana reinscription law
applies to mortgages held by the FDIC. The parties urge three different means
of resolving this question. First, Jump15 contends that the 1993 judgment
disposed of the reinscription question and is the "law of the case." Second,
Joslin argues that the Financial Institutions Reform, Recovery, and
Enforcement Act of 198916 frees the FDIC from state-law reinscription
requirements. If FIRREA does not apply, Joslin asserts that federal common
law governs the FDIC, thereby precluding the imposition of state reinscription
obligations. We address each contention in turn.

16

* Jump argues that the district court in the 1999 case was bound by the 1993
judgment, which provided the "law of the case." Under the "law of the case"
doctrine, "a decision on an issue of law made at one stage of a case becomes a
binding precedent to be followed in successive stages of the same litigation."17
Where a final judgment is entered, the case appealed, and the case remanded, a
trial judge must adhere on remand to the rulings it made in the case before
appeal, assuming that the appellate court has not overturned the rulings.18
Moreover, an appellate court is generally precluded from reexamining issues
decided in a prior appeal.19 This doctrine applies regardless of whether the issue
was decided expressly or by necessary implication.20

17

Jump notes that the 1993 judgment found a mortgage and assignment issued by
McFarland in 1981 to be "preempted." He contends that the district court found
the 1981 mortgage to be preempted because of the FDIC's failure to reinscribe
the original mortgage within a ten-year period. Jump concludes that the district
court thereby recognized that the FDIC must comply with Louisiana
reinscription requirements. Jump concedes that the 1993 judgment did not and
could not address the FDIC's subsequent failure to reinscribe the pledged 1984

mortgage. However, he asserts that the 1993 judgment enunciated a legal

principle that was binding on the 1999 judgment.21 As we understand it, he
contends that the 1993 case was merely a prior stage of the same litigation, and
that the district court's prior judgment bound it in future phases of the same
case. 22
18

On the face of the matter it is doubtful whether the 1993 and 1999 proceedings
constitute the same "case." It is true that the same trial judge presided at both
proceedings and that the two judgments had the same case number and caption.
It is equally true, however, that the 1993 decision was a final judgment and the
1999 case was not decided on remand from our 1994 decision. By then, several
facts had changed: Joslin became the holder of the FDIC's 1984 mortgage and
assignment, and the FDIC failed to reinscribe the mortgage.23

19

Even if we assume that the two rulings were part of the same "case," we do not
read the 1993 judgment as advocated by Jump. The 1993 judgment does not
explain its finding of preemption. In a pre-trial order adopted by the district
court in 1993, the court recognized as a contested issue of law "[w]hether the
1981 FDIC mortgage is unenforceable because it was not reinscribed"
(emphasis added). The court also noted two other objections to the 1981
mortgage: (1) whether the mortgage was "unenforceable" because it failed to
comply with La. Rev. Stat. 30:138; and (2) whether failure to fill in the
effective date on the mortgage similarly rendered it "unenforceable." The
record does not reflect any further discussion by the parties of the reinscription
issue prior to the 1993 judgment.

20

The 1993 judgment failed to unambiguously affirm the FDIC's obligation to

abide by Louisiana reinscription law. While Louisiana cases occasionally
employ the term "preemptive" to describe the period in which a mortgage must
be reinscribed,24 this language differs from the court's 1993 pre-trial order,
"unenforceable." Given these uncertainties, we are not prepared to conclude
that the law of the case doctrine barred the district court from considering the
reinscription issue.25

B
21

Joslin argues that FIRREA, 12 U.S.C. 1825(b)(2), protects the FDIC from
state-law reinscription requirements.26 The statute provides:

22

When acting as a receiver, the following provisions shall apply with respect to
the Corporation: . . . No property of the Corporation shall be subject to levy,

attachment, garnishment, foreclosure, or sale without the consent of the

Corporation, nor shall any involuntary lien attach to the property of the
Corporation.27
23

Joslin asserts that the plain meaning of the statute compels the conclusion that
Louisiana reinscription law would not apply to the FDIC.

24

The Louisiana reinscription statute may effect a re-ranking of liens. Failure to

reinscribe a mortgage within the ten-year period specified in Article 3369 of the
Louisiana Civil Code does not invalidate the mortgage as between the
contracting parties. 28 Untimely reinscription does, however, render the initial
inscription of the mortgage ineffective against third parties. Third-party
creditors then have priority over the mortgage that was not timely reinscribed.
Any attempt to reinscribe after the ten-year period can not alter this change in
seniority. Late reinscription merely crystallizes the ranking in effect at the time
of the reinscription.29

25

Although failure to reinscribe a mortgage may result in the application of an

"involuntary lien" to FDIC property, FIRREA does not provide relief. We read
the provisions of FIRREA in context, cognizant of the statute's structure and
purpose.30 Passed in the wake of a national crisis in the banking and savingsand-loan industries, FIRREA was intended to promote stability, economic
recovery, and increased public confidence. 31 To this end, the FDIC was
empowered to serve as receiver for failed financial institutions.32 Section 1825
was enacted to facilitate the FDIC's efforts as receiver and was intended to
"protect assets involuntarily acquired by the FDIC from losing value because of
its lack of knowledge about local and state tax liens."33

26

Before the passage of FIRREA, section 1825 only included the provision
currently codified as 1825(a), which articulated the FDIC's exemption from
taxation while acting in its corporate capacity.34 FIRREA added subsection (b)
to extend this exemption to FIRREA's role as receiver.35 We are persuaded that
section 1825(b)(2) merely extends the general exemption of the FDIC from
taxation to the receivership context. As a House Report accompanying
FIRREA indicated:

27

[Section 1825(b)(2)] clarifies the existing provision specifying that the only
kind of non-Federal tax to which the FDIC, in its corporate capacity or as
receiver, is subject is a tax on real property. The exemption from taxation
extends to the [FDIC's] property and operations in whatever capacity it is
functioning, and particularly as receiver for a national bank, a branch of a

foreign bank, or a savings association (but not as a receiver for a State bank
under State law).36
28

The title to section 1825 confirms the arrangement established by FIRREA.37

Section 1825 is labeled, "Exemption from taxation; limitations on borrowing."
FIRREA added the heading, "General rule," to subsection (a).38 The heading
which FIRREA designated for subsection (b), "Other exemptions," confirms
that section 1825(b)(2) was intended to address other exemptions from taxation
than those stipulated in the "general rule." The "other exemption" at issue in
this case is the rule precluding the attachment of an involuntary tax lien to
FDIC property. The structure, title, and purpose of the statute compel this
conclusion.

29

This Court has consistently interpreted section 1825(b)(2) in this fashion. We

have found that this section prohibits state and local taxing authorities from
foreclosing on property subject to an FDIC lien without its consent.39 This
Court has not applied the exemption of section 1825(b)(2) to liens not attached
by state and local taxing authorities.40 Indeed, we have repeatedly found that
section 1825(b)(2) "represents the express will of Congress that the FDIC must
consent to any deprivation of property initiated by a state."41

30

Joslin attempts to apply this exemption to the intervention initiated by Jump

and Bank One. As Jump and Bank One are private entities possessing normal
judgment liens, however, their claims are not barred by section 1825(b)(2). We
therefore find that FIRREA does not preclude the application of Louisiana
reinscription law to the FDIC's property. Nothing in FIRREA prevents
Louisiana law from recognizing either the FDIC's obligation to reinscribe
mortgages or the loss of ranking suffered by the FDIC if it fails to meet this
obligation. FIRREA only prohibits state and local entities from taking
advantage of the FDIC's failure to reinscribe by attaching liens and other
instruments to satisfy tax judgments. As these circumstances are not present
here, Joslin's argument fails.42

C
31

Joslin argues, in the alternative, that federal common law-- and not Louisiana
reinscription law--governs the status of FDIC liens. In United States v. Kimbell
Foods, Inc., 43 the Supreme Court articulated the general framework for
determining whether to apply federal common law or state law. The Kimbell
Foods case addressed the question of whether liens arising from federal loan
programs take precedence over private liens. The Court noted that, in the
absence of a federal statutory provision setting priorities, it must first decide

whether federal or state law provides the "rule of decision" for the
controversy. 44 If a federal rule of decision is appropriate, the court must
determine whether to fashion a uniform federal standard or to incorporate state
commercial law. 45 The Court's inquiry was guided by consideration of three
factors: (1) the federal interest in uniform federal rules; (2) whether application
of state law would frustrate the specific objectives of the federal program at
issue; and (3) to what extent application of a federal rule would disrupt
commercial relationships predicated on state law.46 In subsequent cases, the
Court has held that federal law provides the "rule of decision" in lieu of state
law only where there is a "significant conflict between some federal policy or
interest and the use of state law."47 The Supreme Court has observed that such a
conflict is a "precondition for recognition of a federal rule of decision," and has
noted that such cases are "few and restricted."48
32

We find that state law provides the rule of decision in this case. FIRREA is a
comprehensive and detailed statutory scheme.49 The Supreme Court has stated
that we are not to "adopt a court-made rule to supplement federal statutory
regulation that is comprehensive and detailed; matters left unaddressed in such
a scheme are presumably left subject to the disposition provided by state
law."50 Joslin does not articulate a valid basis for overcoming this presumption.

33

Moreover, the FDIC in this case acts not in its corporate capacity, but as
receiver for a private bank. This Court has followed the Supreme Court in
recognizing that "the capacity in which the FDIC acts may have a determinative
impact on whether a state or federal rule should control."51 As receiver for the
Bank of Commerce, the FDIC's rights and liabilities derive from a private lien
held by a private bank. Precedent confirms that the FDIC's actions as receiver
do not implicate the concerns articulated in cases such as Kimbell Foods.52 As
the FDIC's actions as a receiver do not concern the "rights of the United States
in a nationwide federal program,"53 state law normally supplies the rule of
decision.54

34

We also do not find that application of state law would create a "significant
conflict" with the FDIC's putative interest in the application of a uniform
national standard.55 Joslin points to provisions in FIRREA which protect the
FDIC from the effects of state law,56 yet offers no reason why these
protections--none of which is relevant to the reinscription issue at hand--imply
the need for a uniform national standard.57 While uniformity of law would free
the FDIC from the obligation of consulting state law to determine reinscription
and lien priority rules, this requirement is one of the "ordinary consequences"
of operating as receiver. 58 Disposing of the assets and obligations of a failed
financial institution necessarily requires an individualized inquiry into the

effects of local law.59 FIRREA lightens this burden considerably by protecting

the FDIC from the effect of state law in various respects. Joslin provides no
compelling reason for this Court to extend these protections. Nor does it offer
any limiting principles were we to proceed down that road, demonstrating the
"runaway tendencies of 'federal common law.'"60
35

Joslin articulates no significant federal policy or interest that would be

jeopardized by exposure to reinscription requirements. There is a candidate.
FIRREA was "designed in part to facilitate the efficient and speedy recovery of
the assets of . . . failed [financial institutions]."61 Given the need to market
occasionally large quantities of assets, the FDIC prefers to sell assets without
the risk of losing its priority position. While we are not unsympathetic to the
bureaucratic limitations of the FDIC, we fail to see how the state-law
requirements at issue pose a "significant conflict" with the federal interest in
effectively disposing of the assets at the FDIC's disposal.

36

Precedent also leaves little doubt that a federal agency's interest in preserving
priority lien status is insufficient to render state law inapplicable. Although
Kimbell Foods applied a federal rule of decision, it incorporated state law for
purposes of determining the relative priority of competing federal and private
liens.62 In Magnolia Federal Bank v. United States,63 our Court similarly found
that, "[i]nsofar as Magnolia's claim would subordinate rather than bar
enforcement of SBA's liens for untimeliness, state law is properly invoked
against the federal agency."64 Failure to reinscribe a lien in Louisiana does not
extinguish the mortgage. The mortgage merely loses priority status vis-a-vis
other creditors.65 The prohibition against applying state statutes of limitations to
the activities of federal agencies consequently does not govern this case.66 The
Louisiana law at issue presents no significant conflict with the FDIC's interests.

37

We further note that the application of federal law would disrupt commercial
relationships predicated on state law.67 As Joslin concedes, Louisiana has a
strong public records doctrine.68 The public records doctrine serves important
reliance interests, as third parties are "entitled to rely on the absence from the
public records of any unrecorded interest in the property."69 The purposes of
the Louisiana reinscription requirement are "to provide public notice of the
essentials of the mortgage and to limit 'searching, for the evidence of
mortgages, more than ten years back.'"70 The significance of this doctrine is
evident in the Louisiana rule stating that actual knowledge by third parties of an
unrecorded interest is immaterial; recordation and reinscription are alone
dispositive of priority status.71

38

Case law affirms the importance of respecting this state policy. The Supreme

Court has recognized that state laws of this kind provide private commercial
entities with "the stability essential for reliable evaluation of the risks
involved." 72 The Supreme Court also has noted that if federal law were to
displace state law regulating lien priority, "[c]reditors who justifiably rely on
state law to obtain superior liens would have their expectations thwarted
whenever a federal contractual security interest suddenly appeared and took
precedence."73 Moreover, this Court's jurisprudence affirms that we are to defer
to state property regimes when considering whether to apply a federal common
law rule.74 We have found that the "strong local interest in state regulation of
land titles. . . . should 'be overridden by the federal courts only where clear and
substantial interests of the National Government, which cannot be served
consistently with respect for such state interests, will suffer major damage if the
state law is applied.'"75 As we do not find that state law will significantly
impede the work of the FDIC as receiver in this context, "we decline to override
[this] intricate state law[ ] of general applicability on which private creditors
base their daily transactions." 76 We are ill-equipped to take such a step and
leave this matter in Congress's capable hands.77
IV
39

Assuming that Louisiana reinscription law applies to the FDIC, Joslin contends
that the 1993 judgment satisfied these requirements. We disagree. Article 3333
of the Louisiana Civil Code requires that the holder of the mortgage file a
signed, written notice of reinscription which, inter alia, "shall declare that the
document is reinscribed."78 Article 3336 of the Civil Code affirms that this
method is exclusive of all others.79 The Act creating the reinscription method
currently in effect states that "[t]he procedure for reinscription of mortgages
and privileges as set forth in Civil Code Articles 3328 through 3331 shall be
effective as to all requests for reinscription filed on or after [January 1,
1993]."80 Assuming that the 1993 judgment constitutes a "request for
reinscription," the method outlined in Article 3333 applies. Not only was the
1993 judgment not signed by an FDIC representative, but it also does not
declare that the document is to be reinscribed. Consequently, the 1993
judgment did not reinscribe the 1984 mortgage and assignment.

40

Even under prior law, the 1993 judgment would not constitute an effective
reinscription of the mortgage and assignment. Although a recorded judgment
could effectively reinscribe a mortgage, it had to include each of the
"substantial particulars" of the mortgage.81 A reinscription had to contain
"notice to the world that the mortgagor continue[s] to admit his indebtedness,
and that the mortgagee continue[s] to maintain its mortgage on the property
described."82 The 1993 judgment does not include a copy of the 1984 mortgage

and assignment. It only refers to "the oil and gas leases, royalty interests,
overriding royalty interests and other property described" in the mortgage. This
description fails to provide third-parties with the notice required under
Louisiana reinscription law.83 The judgment also was deficient in other
respects, as it failed to include, inter alia, "the name of the officer who passed
the act [of mortgage and assignment]."84 We therefore agree with the district
court that the 1993 judgment was not a valid reinscription of the 1984 mortgage
and assignment.85
V
41

Joslin contends that the Jump judgment was not a "final" judgment and
therefore improperly registered. 28 U.S.C. 1963 allows for registration where a
judgment "has become final by appeal or expiration of the time for appeal or
when ordered by the court that entered the judgment for good cause shown."
By the plain language of the statute, registration may only occur where a
judgment or order is final for purposes of appeal.86 The only exception
contemplated by section 1963 is where the district court makes a good cause
determination.

42

Rule 54 of the Federal Rules of Civil Procedure affirms that a judgment is not
final for purposes of appeal where it disposes of fewer than all of the claims or
parties involved in a case. Rule 54(b) allows a court to "direct the entry of final
judgment as to one or more but fewer than all of the claims or parties only upon
an express determination that there is no just reason for delay and upon an
express direction for the entry of judgment."

43

The Jump judgment only disposed of Jump's claims. Litigation involving other
parties to the Colorado litigation did not conclude until August 25, 1997--long
after the FDIC's reinscription of the mortgage and assignment. As Jump
concedes that no Rule 54(b) certification was obtained, the judgment upon
which he bases his claim was not final. 87 Because the registration of the Jump
judgment was premature,88 it could not prime the FDIC's lien following the
FDIC's reinscription of the mortgage and assignment in 1995. Although
registration of the 1997 judgment would assure Jump of a claim to McFarland's
assets, a resulting lien would remain subordinate to those held by Bank One
and Joslin, respectively.89

44

The district court focused on the unique status of consent judgments, which are
unappealable.90 The court held that the time for appeal from a consent
judgment expires immediately upon the entry of judgment.91 Even if we accept
the court's position, it does not alter the fact that Jump failed to obtain the

requisite Rule 54(b) certification. We are unprepared to carve out an exception

to Rule 54(b) for consent judgments. Such a decision is more appropriately
taken by Congress.92
45

In light of the preceding, we hereby AFFIRM the judgment of the district court
finding that Louisiana reinscription law operates to strip the FDIC of priority
lien status. We further REVERSE the district court's holding that the Jump
judgment was an executable, final judgment and its finding that the Jump
judgment was senior to Joslin's lien. We REMAND for proceedings not
inconsistent with this opinion.

46

AFFIRMED in part, REVERSED and REMANDED in part.

NOTES:
1

Although McFarland executed other mortgages in favor of the Bank of

Commerce, none of these instruments is relevant to the instant appeal.

The assignment, which was executed on the same day as the note, encompassed
McFarland's right, title, and interest "in and to the oil, gas and other minerals, of
whatever nature and kind whatsoever, situated in and under and which may be
produced from the land affected by the leases described" in a schedule attached
to the mortgage.

We will refer to the 1984 mortgage note as the 1984 mortgage and the 1984
mineral lease mortgage and assignment as the 1984 assignment. We will also
refer to both instruments jointly as the 1984 mortgage and assignment.

Bank One and Jump agreed to combine their efforts in the ensuing ranking
dispute.

Texaco, Inc. had deposited proceeds from the mineral leases into the court
registry. The FDIC had joined Texaco as a party given its status as the operator
of most of the encumbered mineral interests. The FDIC had also joined as
parties Russell Long and Palmer Long, who were trustees of certain expired
trusts of which McFarland had been beneficiary. Prior to the 1993 action, the
Longs periodically received funds from Texaco and distributed them to
McFarland.

On October 23, 1995, Bank One received $300,000 from the funds deposited in
the court registry that were traceable to the OCS-310 lease. Bank One then

released its judgment as to McFarland's interest in the OCS-310 lease. Jump

initiated foreclosure proceedings and purchased that leasehold interest at a sale
held by the United States Marshal. Jump also received the balance of the funds
on deposit in the registry attributable to the OCS-310 lease.
7

See Federal Deposit Ins. Corp. v. McFarland, 33 F.3d 532 (5th Cir. 1994).

See La. Civ. Code Ann. art. 3369 (West 1992) (requiring the reinscription of a
mortgage within ten years of its creation). Although the statute was amended in
1993, see 1992 La. Acts No. 1132, these amendments only apply to mortgages
created on or after the effective date of January 1, 1993. See id. at 7; Seal v.
Crain, 767 So. 2d 798, 801 (La. App. 1st Cir. 2000). We note that a pledge of
minerals, or assignment of runs, faces the same ten-year reinscription
requirement as the mortgage it secures. See La. Rev. Stat. Ann. 31:202 (West
1989). Contrary to Joslin's assertions, the 1990 repeal of certain provisions of
the Louisiana Mineral Code does not affect this case. Revised Article 204 of
the Mineral Code, La. Rev. Stat. Ann. 31:204 (West Supp. 2000), does not
apply to pledges entered into before the effective date of Chapter 9 of the
Louisiana's Commercial Laws. See 1989 La. Acts 137, 20. The 1984 pledge at
issue in this case was executed prior to this effective date and is therefore
governed by former Article 202 of the Mineral Code.

See Bayou Liberty Ass'n v. United States Army Corps of Eng'rs, 217 F.3d 393,
396 (5th Cir. 2000) ("We must address the issue of mootness first, because to
qualify as a case for federal court adjudication, a case or controversy must exist
. . . . Whether a case is moot is a question of law that we resolve de novo.").

10

See Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986) (discussing
Article III case or controversy requirements and noting that, "[i]f the subject of
an appeal has become moot, the appellate court may not decide it").

11

See La. Civ. Code Ann. art. 3369 (West 1992); La. Rev. Stat. Ann. 31:202
(West 1989).

12

Shepherd v. The Orleans Cotton Press Co., 2 La. Ann. 100, 111 (La. 1847).

13

Because the facts litigated in the 1993 judgment differ from those in the 1999
judgment, collateral estoppel is of no assistance to Joslin. See Copeland v.
Merrill Lynch & Co., 47 F.3d 1415, 1422 (5th Cir. 1995).

14

Joslin also frames its mootness argument in terms of the law of the case
doctrine. Joslin contends that the 1993 judgment granted it (through the FDIC)
ownership of the past and future proceeds from the leases. It argues that this
decision was binding on the 1999 proceedings. This argument fails for the same

reasons as Joslin's mootness claim. The 1993 judgment did not preclude the
possibility that other circumstances could strip Joslin of its ownership interest.
Moreover, as discussed infra, we are skeptical as to whether or not the 1993 and
1999 proceedings constitute different phases of the same "case." Cf. United
States v. Lawrence, 179 F.3d 343, 351 (5th Cir. 1999).
15

Jump is the only party besides Joslin participating in this appeal. Pursuant to a
prior compromise and settlement agreement, Jump is participating on behalf of
both himself and Bank One.

16

Pub. L. No. 101-73, 103 Stat. 183 (codified as amended in scattered sections of
12 U.S.C.).

17

Roboserve, Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1031 (7th Cir. 1997)
(citations and quotations omitted); see also United States v. Webb, 98 F.3d 585,
587 (10th Cir. 1996); 18 Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure 4478 (West Supp. 2000).

18

See Roboserve, 121 F.3d at 1031.

19

See Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1150 (5th Cir.
1993).

20

See id.

21

Jump does not argue that this Court's prior decision provides the law of the
case. Nothing in our 1994 decision implied an affirmation of the district court's
ruling on the reinscription issue. Indeed, this Court did not even discuss the
1981 mortgage. Failure to address an issue decided below does not necessarily
imply its affirmation.

22

See Roboserve, 121 F.3d at 1031.

23

Cf. United States v. Lawrence, 179 F.3d 343, 351 (5th Cir. 1999) (finding that
law of the case doctrine did not apply, as a post-conviction motion is a separate
"case" from the initial proceeding resulting in conviction).

24

See State ex rel. Meriwether v. City of Shreveport, 91 So. 678, 679 (La. 1921);
Vautrain v. Neel, 163 So. 555, 557 (La. Ct. App. 1935).

25

See Roboserve, Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1031-32 (7th Cir.
1997) (finding that the law of the case doctrine did not apply, as scant
references in the record were insufficient to establish that the district court or
appellate court prior to remand had decided the issue).

26

This Court applies de novo review to questions of law. See St. Martin v. Mobil
Exploration & Prod. U.S. Inc., 224 F.3d 402, 405 (5th Cir. 2000).

27

12 U.S.C. 1825(b)(2) (2000).

28

See Security Nat'l Trust v. Alexander, 621 So. 2d 30, 31 (La. App. 2d Cir.
1993).

29

See Executors of Liddell v. Rucker, 13 La. Ann. 569, 571 (La. 1858);
Alexander, 621 So. 2d at 31. The 1984 assignment faces an equivalent
reinscription law. See La. Rev. Stat. Ann. 31:202 (West 1989) (articulating a
ten-year reinscription period and noting that the "effect of registry" of a pledge
terminates after that period).

30

See Lady v. Neal Glaser Marine, Inc., 228 F.3d 598, 609 (5th Cir. 2000).

31

See Trembling Prairie Land Co. v. Verspoor, 145 F.3d 686, 690 (5th Cir.
1998); H.R. Rep. No. 101-54(I), at 294, 307 (1989), reprinted in 1989
U.S.C.C.A.N. 86, 90, 103; H.R. Conf. Rep. No. 101-222, at 393 (1989),
reprinted in 1989 U.S.C.C.A.N. 432, 432.

32

See 12 U.S.C. 1821(c)(6)(B)(ii) (2000).

33

Verspoor, 145 F.3d at 689-90.

34

See 12 U.S.C. 1825 (1988).

35

See Irving Indep. Sch. Dist. v. Packard Props., 970 F.2d 58, 61 (5th Cir. 1992).

36

H.R. Rep. No. 101-54(I), at 337, reprinted in 1989 U.S.C.C.A.N. at 133

(emphasis added).

37

See United States v. Marek, 238 F.3d 310, 321-22 (5th Cir. 2001) (affirming
the value of examining the title of a disputed provision where ambiguity is
present).

38

See FIRREA 219, 103 Stat. 183, 261 (codified as amended at 12 U.S.C.
1825(a)).

39

See Trembling Prairie Land Co. v. Verspoor, 145 F.3d 686, 689-91 (5th Cir.
1998); FDIC v. Lee, 130 F.3d 1139, 1143 (5th Cir. 1997); Donna Indep. Sch.
Dist. v. Balli, 21 F.3d 100, 101 (5th Cir. 1994); Matagorda County v. Russell
Law, 19 F.3d 215, 222 (5th Cir. 1994); see also Simon v. Cebrick, 53 F.3d 17,
22 (3d Cir. 1995).

40

41
42

Our Court is consequently in disagreement with the Tenth Circuit. See GWN
Petroleum Corp. v. OK-Tex Oil & Gas, Inc., 998 F.2d 853 (10th Cir. 1993). We
note that the GWN court failed to address whether the scope of section 1825(b)
(2) was restricted to liens held by state and local taxing authorities.
Lee, 130 F.3d at 1143 (emphasis added); First State Bank-Keene v. Metroplex
Petroleum Inc., 155 F.3d 732, 738-39 (5th Cir. 1998).
Joslin also invokes 12 U.S.C. 1821(d)(13)(C), which provides: "No attachment
or execution may issue by any court upon assets in the possession of the
receiver." Courts have construed this provision as prohibiting the attachment of
liens and judgments against the property of the FDIC or Resolution Trust
Corporation (RTC) when they are acting as receivers. See Resolution Trust
Corp. v. Cheshire Mgmt. Co., 18 F.3d 330, 335 (6th Cir. 1994); GWN
Petroleum, 998 F.2d at 856-57; Cambridge Capital Corp. v. Halcon Enters.,
Inc., 842 F. Supp. 499, 505 (S.D. Fla. 1993). However, none of these decisions
has applied this provision to the assignee of the FDIC or RTC. Indeed, the plain
language of section 1821(d)(13)(C) affirms that the provision applies only
while the assets are "in the possession" of the FDIC/RTC. While it is generally
true that "an assignee takes all of the rights of the assignor, no greater and no
less," In re New Haven Projects Ltd. Liability Co. v. City of New Haven, 225
F.3d 283, 290 n.4 (2d Cir. 2000) (quotations omitted), no authority supports the
proposition that section 1821(d)(13)(C) creates assignable rights. See id.
At oral argument, Joslin raised for the first time the contention that 12 U.S.C.
1821(d)(13)(D), in conjunction with section 1821(d)(13)(C), deprived the
district court of jurisdiction to decide the matter. Section 1821(d)(13)(D),
which is entitled, "Limitation on judicial review," states:
Except as otherwise provided in this subsection, no court shall have jurisdiction
over - (i) any claim or action for payment from, or any action seeking a
determination of rights with respect to, the assets of any depository institution
for which the Corporation has been appointed receiver, including assets which
the Corporation may acquire from itself as such receiver; or (ii) any claim
relating to any act or omission of such institution or the Corporation as receiver.
12 U.S.C. 1821(d)(13)(D). This provision merely requires claimants to assets in
possession of the FDIC to exhaust administrative remedies prior to filing in
court. The circuits agree on this point. See, e.g., American First Federal, Inc. v.
Lake Forest Park, Inc., 198 F.3d 1259, 1263 (11th Cir. 1999); FDIC v. Scott,
125 F.3d 254, 258 (5th Cir. 1997); Nat'l Union Fire Ins. v. City Sav., 28 F.3d
376, 393 (3d Cir. 1994); RTC v. Midwest Fed. Sav. Bank, 36 F.3d 785, 791
(9th Cir. 1993). The record does not reveal that administrative claim remedies

were pursued prior to either the 1993 or 1999 action. This Court is precluded
from collaterally attacking the 1993 decision. See Chicot County Drainage
Dist. v. Baxter State Bank, 308 U.S. 371 (1940); Jack's Fruit Co. v. Growers
Mktg. Serv., Inc., 488 F.2d 493, 494 (5th Cir. 1973) (per curiam). Failure to
pursue remedies in the 1999 case is of no moment, however, as the FDIC was
no longer a party. It would be absurd for us to interpret section 1821(d)(13)(D)
as assignable to the current holder, Joslin. The claim procedures articulated in
12 U.S.C. 1821(d)(5)-(11) are predicated on the FDIC's possession of the
property in question. When the FDIC relinquishes ownership, the procedures
governing its role as a receiver no longer apply to the property. Thus, section
1821(d)(13)(D) did not deprive the 1999 court of jurisdiction. As noted above,
section 1821(d)(13)(C) is not a jurisdictional provision.
43

440 U.S. 715 (1979).

44

Id. at 718.

45

Id.

46

Id.

47

O'Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994) (quotations omitted).

48

Id.

49

See id. at 85 (describing FIRREA as "comprehensive legislation"). Joslin

concedes that FIRREA is "meticulous and comprehensive."

50

Id.

51

Davidson v. FDIC, 44 F.3d 246, 251 (5th Cir. 1995); see O'Melveny & Myers,
512 U.S. at 88.

52

See Atherton v. FDIC, 519 U.S. 213, 225 (1997); O'Melveny & Myers, 512
U.S. at 88; Ferguson v. FDIC, 164 F.3d 894, 897-98 (5th Cir. 1999); Davidson,
44 F.3d at 251.

53

Davidson, 44 F.3d at 251.

54

See id. at 250 ("Absent [a significant federal proprietary interest] . . . or some

express congressional policy to the contrary, state law governs state-law rights
held by the FDIC in its limited capacity as the receiver of a nonfederal entity.").

55

See Kimbell Foods, 440 U.S. at 728-29.

56

See, e.g., 12 U.S.C. 1825; see also Campbell Leasing, Inc. v. FDIC, 901 F.2d
1244, 1249 (5th Cir. 1990) (finding that the FDIC enjoys holder in due course
status as a matter of federal common law, regardless of whether it acts in a
corporate or receivership capacity).

57

See Atherton v. Federal Deposit Ins. Corp., 519 U.S. at 218 ("Nor does the
existence of related federal statutes automatically show that Congress intended
courts to create federal common-law rules, for 'Congress acts . . . against the
background of the total corpus juris of the states.'") (quoting Wallis v. Pan Am.
Petroleum Corp., 384 U.S. 63, 68 (1966)); see also O'Melveny & Myers, 512
U.S. at 86-87.

58

See O'Melveny & Myers, 512 U.S. at 88.

59

See Kimbell Foods, 440 U.S. at 729-33 (noting that adherence to state-law lien
priority rules would not unduly impede the operations of the Small Business
Administration (SBA), given that it already engaged in individualized inquiry
regarding local law and prospective debtors).

60

O'Melveny & Myers, 512 U.S. at 89.

61

N.S.Q. Assocs. v. Beychok, 659 So. 2d 729, 731 (La. 1995).

62

See Kimbell Foods, 440 U.S. at 718.

63

42 F.3d 968 (5th Cir. 1995).

64

Magnolia, 42 F.3d at 969. This Court fails to discern a relevant difference

between the interests of agencies such as the SBA and the Farmers Home
Administration (FmHA) in preserving priority lien status and that of the FDIC.

65

See Executors of Liddell v. Rucker, 13 La. Ann. 569, 571 (La. 1858); Security
Nat'l Trust v. Alexander, 621 So. 2d 30, 31 (La. App. 2d Cir. 1993).

66

See Magnolia, 42 F.3d at 972; cf. United States v. Summerlin, 310 U.S. 414,
416 (1940); cf. Farmers Home Admin. v. Muirhead, 42 F.3d 964, 965 (5th Cir.
1995).

67

See Kimbell Foods, 440 U.S. at 728-29, 739-40.

68

See McDuffie v. Walker, 51 So. 100, 105 (La. 1909); see also Max Nathan, Jr.
& Anthony P. Dunbar, The Collateral Mortgage: Logic and Experience, 49 La.
L. Rev. 39, 44 n.22 (1988) (discussing Louisiana's "strong public records
doctrine"); Lee Hargrave, Presumptions and Burdens of Proof in Louisiana

Property Law, 46 La. L. Rev. 225, 234 (1985) (same).

69

Dallas v. Farrington, 490 So. 2d 265, 269 (La. 1986) (emphasis omitted).

70

Exxon Process & Mech. Fed. Credit Union v. Moncrieffe, 498 So. 2d 158, 159
(La. App. 1st Cir. 1986) (quoting Poutz v. Reggio, 25 La. Ann. 637 (1873)).

71

See Dallas, 490 So. 2d at 269. The fact that Jump and Bank One had actual
notice of the 1984 mortgage and assignment is therefore irrelevant. We note
that they are "third persons" as defined in La. Civ. Code Ann. art. 3309 (West
2000) ("Third persons to a mortgage are those who are neither parties to the
contract of mortgage or the judgment that the mortgage secures."). Jump and
Bank One were not parties to the 1984 mortgage and assignment, which was
created by contract. However, Joslin contends that the language, "judgment that
the mortgage secures," indicates that Jump and Bank One, who are parties to
the 1993 judgment, are not third persons. As previously discussed, a mortgage
only binds "third persons" to the extent that it is validly recorded and
reinscribed. See La. Civ. Code Ann. art. 3308 (West 2000). Following Joslin's
reasoning, the FDIC's failure to reinscribe does not render the 1984 mortgage
and assignment ineffective as to Jump and Bank One.
It is unclear whether the current version of Article 3309 applies to a mortgage
that was created before the effective date of the Act creating that provision. See
1992 La. Acts 1132, 2, 7 (amending prior definition of "third persons" and
indicating in general terms the effective date of the Act as January 1, 1993).
Louisiana law prior to 1993 defined "third persons" as "persons who are not
parties to the act or to the judgment on which the mortgage is founded." La.
Civ. Code Ann. art. 3343 (West compiled ed. 1973) (emphasis added). This
language makes clear that the previous formulation of the category, "third
persons," simply excluded parties to the proceedings creating the original
judicial mortgage.
The 1992 Act revising this article indicates that the current Article 3309 merely
codifies principles of the existing public records doctrine and that it is based on
former Civil Code articles 3343 and 3344. 1992 La. Acts 1132, 2 (cmts.
following Article 3309). The commentary following the revised article does not
indicate that the new language changed prior law. Indeed, the current version of
article 3299 of the Civil Code defines "judicial mortgage" as a mortgage which
"secures a judgment for the payment of money." La. Civ. Code Ann. art. 3299
(West 2000) (emphasis added). This language mirrors that which appears in
Article 3309. Although Bank One and Jump might be parties to a judicial
mortgage created by the 1993 judgment, this fact is irrelevant. The parties do
not contend that the FDIC failed to reinscribe a judicial mortgage created in

1993. The 1993 judgment only binds Bank One and Jump to the extent that the
underlying 1984 mortgage and assignment remains valid.
72

Kimbell Foods, 440 U.S. at 739.

73

Id.

74

See Farmers Home Admin. v. Muirhead, 42 F.3d 964, 966 (5th Cir. 1995);
Davidson v. Federal Deposit Ins. Corp., 44 F.3d 246, 251 n.4 (5th Cir. 1995);
see also United States v. Yazell, 382 U.S. 341, 352-54 (1966); Mason v. United
States, 260 U.S. 545, 555-57 (1923).

75

Davidson, 44 F.3d at 251 n.4 (quoting Yazell, 382 U.S. at 352).

76

Kimbell Foods, 440 U.S. at 729.

77

See O'Melveny & Myers, 512 U.S. at 89. Our holding today renders it
unnecessary to decide the question of whether the putative exemption of the
FDIC from Louisiana reinscription law is assignable to Joslin. See Federal
Deposit Ins. Corp. v. Bledsoe, 989 F.2d 805, 811 (5th Cir. 1993) (holding that
assignees of the FDIC and FSLIC are entitled to federal six-year statute of
limitations); Federal Sav. & Loan Ins. Corp. v. Cribbs, 918 F.2d 557, 560 (5th
Cir. 1990) (finding that assignees of the FDIC enjoy holder in due course status
whether or not they satisfy the requirements of state law); Porras v. Petroplex
Sav. Ass'n, 903 F.2d 379, 381 (5th Cir. 1990) (holding that the protections
accorded the FDIC under the D'Oench, Duhme doctrine apply to private
assignee).

78

La. Civ. Code Ann. art. 3333 (West 2000). The name of the mortgagor, as well
as the "recordation number or other appropriate recordation information," are
also required. Id.

79

La. Civ. Code Ann. art. 3336.

80

1992 La. Acts 1132, 7.

81

See Exxon Process, 498 So. 2d at 160 (quoting Life Ins. Co. of Virginia v.
Nolan, 159 So. 583, 585 (La. 1935)). Former Article 3369 of the Louisiana
Civil Code governs reinscription in this case. Recent statutory amendments do
not apply to the 1984 mortgage and assignment. See 1992 La. Act No. 1132, 7
(stating that amendments do not apply to mortgages entered into before January
1, 1993).

82

Nolan, 159 So. at 585.

83

See Shepherd v. The Orleans Cotton Press Co., 2 La. Ann. 100, 113 (La. 1847)
(noting that the description of the property mortgaged is one of the "essential
requisites" of Louisiana reinscription law and that "reference to previous
mortgages does not cure that defect").

84

A. Miltenberger & Co. v. Dubroca, 34 La. Ann. 313, 314 (La. 1882).

85

Joslin also points out that Jump and Bank One made no additional seizure of
McFarland's assets following the 1993 judgment. It argues that the 1993
judgment "merged" Jump and Bank One's previous seizure of the proceeds
from the mineral leases. Assuming that the FDIC's failure to reinscribe resulted
in Joslin's lien losing priority, Joslin contends that Jump and Bank One no
longer have a claim to the assets.
Joslin fails to explain what "merger" in this context entails. It is far from clear
the 1993 judgment ended the seizure of the registry funds obtained by Jump
and Bank One in 1992. Even if the seizure terminated in the wake of the 1993
judgment, Jump and Bank One's failure to renew this seizure does not
necessarily deprive them of a claim. Assuming that they have valid judgment
liens against McFarland that have yet to be fully satisfied by the OCS-310
proceeds, they presumably have a claim to the other proceeds generated by the
mineral pledge entered into by McFarland. Moreover, Joslin fails to cite any
authority in support of its argument. See Fed. R. App. P. 28(a)(9)(A); Jason
D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4, 212 (5th Cir. 1998).

86

The time for appeal articulated in Fed. R. App. P. 4(a)(1)(A) is only triggered
by the entry of a final judgment or order. See Nelson v. Foti, 707 F.2d 170, 171
(5th Cir. 1983) ("F.R.A.P. 4(a) provides that an appeal from a final judgment
must be filed within 30 days of entry of judgment.") (emphasis added).

87

See Huckeby v. Frozen Food Express, 555 F.2d 542, 545-46 (5th Cir. 1977);
Redding & Co. v. Russwine Constr. Corp., 417 F.2d 721, 723-24 (D.C. Cir.
1969).

88

Our holding today does not constitute a collateral attack on the 1993 judgment-a step that we are not permitted to take. See Chicot County Drainage Dist. v.
Baxter State Bank, 308 U.S. 371, 375 (1940); Jack's Fruit Co. v. Growers
Mktg. Serv., Inc., 488 F.2d 493, 494 (5th Cir. 1973) (per curiam).

89

On remand, Jump will have the opportunity to re-register his judgment. We are
unprepared to view the conclusion of the Colorado litigation in 1997 as
automatically rendering Jump's registered judgment final.

90

See Stanford v. Utley, 341 F.2d 265, 271 (8th Cir. 1965) (Blackmun, J.).

91

See id.; Kelly v. Greer, 354 F.2d 209, 211 (5th Cir. 1965) (dictum); Dichter v.
Disco Corp., 606 F. Supp. 721, 724 (S.D. Ohio 1984).

92

See Coopers & Lybrand v. Livesay, 437 U.S. 463, 476 n.28 (1978) ("The
Congress is in a position to weigh the competing interests of the dockets of the
trial and appellate courts, to consider the practicability of savings in time and
expense, and to give proper weight to the effect on litigants. . . . This Court . . .
is not authorized to approve or declare judicial modification. . . . [These]
choices fall in the legislative domain.") (quoting Baltimore Contractors v.
Bodinger, 348 U.S. 176, 181-82 (1955)).